Ward v. Gay.

*399 Hoke, J., after stating tbe case. The descriptive words of the instrument are as follows: “All the pine, poplar and cypress trees now standing and growing on in the swamp on the following lands, situated in Mintonsville Township¡, Gates County, State of North Carolina, and known as a part of the Jordan lands in the swamp bounded by the lands of Leander Howard and Elijah Modlin, leading from said A; J. Ward’s grist-mill to Old Town on Cathron Creek, and others, and containing fifty acres, more or less.” The jury, having answered the first issue “No,” and thereby found that there was no mistake in the deed, the question of the defendant’s liability was made to turn on the instrument as now written. In that aspect of the case, and in his charge to the jury on the second issue, the Court instructed them that “the timber growing on the island above high-water mark did not pass under the contract, and that the defendant would be liable for timber cut unless it was agreed between the parties Ihat the timber on the island was to be included under the contract,” and to this instruction the defendant excepted. In this charge, as we understand it, the Court instructed the jury that by the terms of the instrument, as now expressed, the timber on the island above high-water mark would not pass to the defendant, and that if such timber did pass,- it must do so by an agreement to that effect between the parties not now contained in the written agreement, and in this we think there was error to the prejudice of the defendant which entitles him to a new trial. Where parties have reduced their contract to writing, and the instrument contains their entire agreement, it is not permissible for them to alter or add to same by parol testimony of cotempora-neous expressions or alleged cotemporaneous agreements which change or conflict with their written agreement. Where the written terms contained in the contract are sufficient, to pass the property, but are ambiguous or indefi *400 nite, then parol evidence of the expressions of the parties and attendant facts and circumstances may be heard to aid in ascertaining the correct meaning of the terms used, but not to alter or add to what has been written. In the present case the verdict of the jury finds in response to the first issue that there was no mistake in the terms of the contract. Apart from this, the contract itself, conveying as it does the timber standing and growing on the ground, is a contract concerning realty, its terms are required to be in writing and it was not permissible to alter or add to these terms by parol evidence. This doctrine on contracts concerning realty is very clearly expressed in the case of Miles v. Barrows, 122 Mass., 581. In this case the Court said: “A conveyance of land can only be by deed, and parol evidence is not admissible to control or vary a deed. If the description in it is certain and unambiguous it is not competent to prove that the parties had any intention different from that expressed. But if upon applying the deed to the land it is found to be ambiguous, parol evidence of the surrounding circumstances and of the acts of the parties is competent to aid in the interpretation of the deed, and to enable'the Court to ascertain what was the intention of the parties in the words they have used.” An interesting discussion of the general question will be found in the opinion of Mr. Justice Walker in the case of Cobb v. Clegg, 137 N. C., 153. Again, the descriptive words, “All the pine, poplar, cypress trees,” etc., as set out in the beginning of this opinion, while sufficient to pass the property and permit parol testimony in order to aid in their interpretation, are at the same time so indefinite as to require the aid of such testimony in order to ascertain and declare their true meaning. They are ambiguous and uncertain and present a case for the jury to determine what the deed conveys after hearing all the pertinent *401 facts and attendant circumstances. Rowe v. Lumber Co., 133 N. C., 433 ; Brooks v. Britt, 15 N. C., 482. Similar decisions on ambiguous terms of like import will be found in Sargent v. Adams, 3 Gray, 72 (Mass.); s. c., 63 Am. Dec., 718; also in Doolittle v. Blakesley, 4 Day (Conn.), 265; s. c., 4 Am. Dec., 218. In telling the jury that the timber growing on the island did not pass under the contract, his Honor withdrew from the jury the very question they should have been required to determine. There will be a new trial on all the issues arising on the pleadings, with the words “not included in the contract” eliminated from the second issue, and in case it is again found that there was no mistake in the deed, and the question of the defendant’s responsibility is again submitted on the contract as now written, it must be left to the jury to determine on all the pertinent facts and circumstances whether the timber in dispute was included in the descriptive terms of the deed. New Trial.